Matter of Namio

Interim Decision #2221

临时决定第2221号

This is an appeal from an order of an immigration judge, dated May 18, 1972, which found the respondent deportable as charged and denied his application for voluntary departure. The appeal will be dismissed. The respondent is a 28-year-old male alien who is a native and citizen of Italy. He departed Italy on May 18, 1971 and arrived in Toronto, Canada on the following day. While in Toronto, he was contacted by an individual who identified himself to the respond- ent as "the man that your relatives told you to expect" (Tr. p. R- 59). On the twenty -second of May 1971, both men journeyed to Montreal by bus. On the following day, the respondent was

本上诉针对移民法官1972年5月18日作出的命令，该命令认定被申请人如所指控可被驱逐出境，并驳回其自愿离境申请。上诉将被驳回。 被申请人为28岁男性外国人，系意大利国民和公民。他于1971年5月18日离开意大利，次日抵达加拿大Toronto。在Toronto期间，一名个人联系了他，该人向被申请人自称是“你的亲戚告诉你等候的那个人”（Tr. p. R-59）。1971年5月22日，两人乘巴士前往Montreal。次日，被申请人

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Interim Decision #2221

临时决定第2221号

informed that if he walked down a particular street, at a desig- nated time, he would be picked up and driven directly to New York. He was told to carry his passport and to leave his suitcases at a certain house. The respondent followed the instructions and was picked up as planned. He crossed the border without being examined or inspected by an immigration officer. At approximately 8:15 p.m., on the same day, the respondent was apprehended by the border patrol. Shortly thereafter, while under oath, he made false statements to a border patrol agent. He falsely stated that he traveled to Montreal alone; he did not think it was necessary to stop at the border; he hitchhiked to the United States; he had three rides from Montreal to the United States; he did not know if he was in Canada dr the United States when he was last picked up; and he did not know when he entered into the United States. The following day, the respondent pled guilty, and was found guilty, of entering the United States without presenting himself for inspection by a United States immigration officer. On the same day, he was served with an order to show cause alleging that he was subject to deportation pursuant to section 241(a)(2) of the Immigration and Nationality Act. At the respondent's first deportation hearing, on July 8, 1971, he admitted the truth of the factual. allegations containvd in the Order to Show Cause, conceded deporLability, and was denied the privilege of departing voluntarily from the United States. The respondent appealed that decision to this Board and we remanded "to permit respondent to establish that he is eligible for voluntary departure and merits that relief as a matter of discretion." At the reopened hearing on May 18, 1972, the immigration judge again denied respondent's application for voluntary departure. However, rather than predicating his decision on administrative discretion as he had previously, the immigration judge concluded that the respondent was statutorily ineligible for relief under section 244(e) of the Immigration and Nationality Act. The respondent appealed that decision. In order to qualify for the discretionary benefit of voluntary departure, the respondent must establish that he has been a person of good moral character for at least five years preceding his application. Section 101(f)(6) of the Act provides that:

被告知，如果他于指定时间沿某条特定街道步行，就会有人接他并直接开车送往New York。他被告知随身携带护照，并将手提箱留在某处房屋。被申请人遵照指示，按计划被接走。他未经移民官员检查或查验即越过边境。 同日约晚上8时15分，被申请人被边境巡逻队逮捕。此后不久，他在宣誓后向一名边境巡逻人员作出虚假陈述。他虚假陈述称其独自前往Montreal；他认为没有必要在边境停留；他搭便车前往美国；他从Montreal到美国共搭了三次车；他不知道自己最后一次被接走时是在加拿大还是美国；并且他不知道自己是何时进入美国的。 次日，被申请人认罪，并被判定犯有未经向美国移民官员报到接受检查而进入美国罪。同日，他收到一份说明理由令，指称其依据《移民与国籍法》第241(a)(2)条应被驱逐出境。 在1971年7月8日被申请人的第一次驱逐出境听证中，他承认说明理由令所载事实指控的真实性，承认可被驱逐出境，并被拒绝自愿离境美国的特权。被申请人就该裁决向本委员会提出上诉，我们发回重审，“以允许被申请人证明其有资格获得自愿离境以及作为裁量事项值得获得该救济。”在1972年5月18日重新开庭的听证中，移民法官再次驳回被申请人的自愿离境申请。然而，移民法官并未像先前那样以行政裁量作为其裁决的依据，而是认定被申请人依据《移民与国籍法》第244(e)条在法律上无资格获得救济。被申请人对该裁决提出上诉。 为符合自愿离境这一裁量性利益的资格，被申请人必须证明其在提出申请前至少五年内一直是具有良好道德品格的人。该法第101(f)(6)条规定：

No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established, is, or was— (6) one who has given false testimony for the purpose of obtaining any benefits under this Act: We agree with the determination of the immigration judge that

任何人，在要求确立良好道德品格的期间内，如有下列情形，或曾经有下述情形，不得被视为或被认定为具有良好道德品格的人—— (6) 为获得本法项下任何利益而提供虚假证词者： 我们同意移民法官的认定，即

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Interim Decision #2221 he was statutorily precluded from finding that the respondent was a person of good moral character since the respondent made false statements, while under oath, to a border patrol agent on May 23, 1971. 1 Since relief under section 244(e) of the Act is not available unless the person who is seeking the discretionary benefit is found to be a person of good moral character, the immigration judge correctly denied the respimdent's application for voluntary depar- ture. In two similar cases, Matter of G—L—T—, 8 I. & N. Dec. 403 (BIA,1959) and Matter of Ngan, 10 I. & N. Dec. 725 (BIA,1965), this Board held that false testimony given, while under oath, at a quasi-judicial hearing, constitutes false testimony within the meaning of section 101(fX6) of the Act. Although, these two cases involved a quasi-judicial setting and the instant ease does riot, we do not deem this distinction to -be important. We think that restricting the statutory meaning of false testimony to statements made in an administrative, judicial or quasi-judicial proceeding would be an impermissible delimitation not intended by Congress? The respondent contended that he is eligible for voluntary departure because of his recantation. This argument is without merit since we have consistently held that the recantation must be voluntary and without delays An analysis of the facts of this case indicates that the respondent did not retract his statement until approximately one year later, and the retraction was not made until it appeared that the disclosure of the falsity of the state- ments was imminent. It is evident that the recantation was neither voluntary nor timely. We conclude that the determination of the immigration judge that the respondent was statutorily ineligible for voluntary depar- ture was correct, and the respondent's appeal from that determi- nation will be dismissed. At the conclusion of the respondent's defense, his attorney requested an adjournment so that he could further discuss certain matters with his client. The requested adjournment was denied by

临时决定第2221号 其在法律上被排除认定被申请人为具有良好道德品格的人，因为被申请人于1971年5月23日在宣誓后向边境巡逻人员作出虚假陈述。1 由于除非寻求裁量性利益的人被认定具有良好道德品格，否则不能获得该法第244(e)条项下的救济，移民法官正确驳回了被申请人的自愿离境申请。 在两个类似案件中，Matter of G—L—T—, 8 I. & N. Dec. 403 (BIA,1959) 和 Matter of Ngan, 10 I. & N. Dec. 725 (BIA,1965)，本委员会认定，在准司法听证中宣誓后提供的虚假证词构成该法第101(f)(6)条含义内的虚假证词。尽管这两个案件涉及准司法环境而本案不涉及，我们认为这一区别并不重要。我们认为，将虚假证词的法定含义限于在行政、司法或准司法程序中作出的陈述，将是一种国会未曾意图的不允许的限制？ 被申请人主张，由于其撤回陈述，他有资格获得自愿离境。该论点没有依据，因为我们一贯认定撤回必须自愿且不得迟延。对本案件事实的分析表明，被申请人直到约一年后才撤回其陈述，而且撤回是在其陈述虚假性即将被揭露时才作出的。显然，该撤回既非自愿亦不及时。 我们认定，移民法官关于被申请人在法律上无资格获得自愿离境的裁定是正确的，被申请人对该裁定的上诉将被驳回。 在被申请人辩护结束时，其律师请求延期，以便进一步与其客户讨论某些事项。所请求的延期被

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Interim Decision #2221 the immigration judge on the ground that the attorney had represented the respondent for approximately one year, and that this was sufficient time to discuss all matters pertaining to a proper defense. Respondent's attorney withdrew from the case and departed from the hearing room. 4 The respondent contended that his right to a full and fair hearing was abridged because of the immigration judge's denial of his request for an adjournment. He further argued that the immigration judge's action in closing the hearing without permit- ting an opportunity to find a substitute lawyer after the attorney of record had withdrawn denied him due process of law. In U.S. ex rel. Bilokumsky v. Tdd, 263 U.S. 149, 154 (1923), the United States Supreme Court stated: To render a hearing unfair, the defect, or the practice complained of, must have been such as might have led to a denial of justice, or there must have been absent one of the elements deemed essential to due process. Since the immigration judge has the discretion to grant or deny a motion to adjourn or postpone, 8 CFR 242.13, the only issue is whether or not his decision to deny the motion deprived the respondent of a full and fair hearing. This can be ascertained only by analyzing the particular factual circumstances involved in this case. The adjournment was requested after deportation had been conceded and the respondent had testified on direct examination and cross examination. No other evidence was to be introduced by the Immigration Service, and it was a fair conclusion by the immigration judge that no other evidence would be presented by the respondent. The immigration judge, in explaining why he would not grant the motion to adjourn, stated to respondent's attorney: "You have brought this case all the way up to the point where I am about to make my decision. I cannot recognize your withdrawal from the case." Thereupon, the respondent's attorney withdrew from the proceeding, asserting that he could not prop- erly represent his client unless an adjournment was granted. At that time, the immigration judge stated his decision and closed the hearing. After carefully analyzing the record, we conclude that the immigration judge was entirely justified in refusing to grant the adjournment. Counsel for the respondent did not indicate that he had any testimony which he would present at the adjourned hearing, nor did he present a valid basis for demanding an adjournment. The respondent was afforded ample opportunity to

临时决定第2221号 移民法官驳回，理由是律师已为被申请人代理约一年，这已有足够时间讨论与适当辩护有关的所有事项。被申请人的律师退出案件并离开听证室。4 被申请人主张，由于移民法官驳回其延期请求，其获得完整公平听证的权利受到侵害。他还主张，在记录在案律师退出后，移民法官未经允许寻找替代律师即结束听证的行为剥夺了其正当法律程序。 在 U.S. ex rel. Bilokumsky v. Tod, 263 U.S. 149, 154 (1923) 中，美国最高法院指出： 要使听证不公平，所投诉的缺陷或做法必须达到可能导致司法不公的程度，或者必须缺少被视为正当程序所必需的因素之一。 由于移民法官有裁量权批准或驳回延期或推迟动议，8 CFR 242.13，唯一问题是其驳回动议的决定是否剥夺了被申请人获得完整公平听证的权利。这只能通过分析本案所涉具体事实情况来确定。 延期请求是在已承认可被驱逐出境且被申请人已在直接询问和交叉询问中作证之后提出的。移民局不打算提交其他证据，移民法官合理断定被申请人也不会提交其他证据。移民法官在解释为何不批准延期动议时对被申请人的律师说：“你已把本案推进到我即将作出裁决的地步。我不能认可你退出本案。”随后，被申请人的律师退出程序，声称除非批准延期，否则他无法适当代理其客户。当时，移民法官宣布其裁决并结束听证。 在仔细分析记录后，我们认定，移民法官完全有理由拒绝批准延期。被申请人的律师未表明其在延期听证上将提交任何证词，也未提出要求延期的有效依据。被申请人已获得充分机会

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Interim Decision #2221 present testimony. In Moutsos v. Shaughnessy, 149 F. Supp. 116 (S.D.N.Y. 195'7), the court stated that "no party has an inflexible right to adjournment. His only right is not to be deprived of an opportunity to present testimony." We find that the denial of the adjournment was entirely within the discretion of the immigration judge and that respondent was not deprived of a fair hearing. The final assertion of the respondent is that the immigration judge acted al.} trarily in closing the hearing without affording the responder - time to secure a substitute counsel. A careful study of the hearing shows to our satisfaction that it was not arbitrary or unreasonable to close the hearing at that time. The respondent had presented his case and had been represented throughout by counsel. As the immigration judge stated, there was nothing-left but the decision. We conclude that the respondent has not demonstrated that he has been deprived of a full and fair hearing. The immigration judge reasonably exercised his discretion in denying the adjourn- ment and closing the hearing. Based upon the foregoing the following order will be entered. ORDER: The appeal is dismissed.

临时决定第2221号 出庭作证。在Moutsos v. Shaughnessy, 149 F. Supp. 116（S.D.N.Y. 195'7）一案中，法院指出“任何一方均无要求延期审理的绝对权利。其唯一权利是不被剥夺提供证词的机会。”我们认定，拒绝延期审理完全属于移民法官的自由裁量权范围，且 respondent 未被剥夺公平听证。 respondent 的最后一项主张是，移民法官在未给予 responder 时间获取替代律师的情况下即结束听证，属任意行为。经仔细审阅听证记录，我们确信在当时结束听证并非任意或不合理。respondent 已陈述其案情，且全程由律师代理。正如移民法官所言，除作出决定外已无其他事项。 我们认定，respondent 未能证明其被剥夺了完整且公平的听证。移民法官在拒绝延期审理和结束听证方面合理行使了自由裁量权。基于上述理由，将作出以下命令。 命令：上诉驳回。

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